American Federation of Government Employees, Local 2442, AFL-CIO (Union) and Veterans Administration, Regional Office, Newark, New Jersey (Agency) (Authority decision, September 4, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union proposed a grievance procedure at the Newark VA regional office. The VA claimed it was nonnegotiable because the text did not expressly exclude separation grievances from probationary employees. The Authority held that the statute did not require that exclusion and set aside the agency’s nonnegotiability allegation.

Decision snapshot

• Authority: 5 U.S.C. § 7121, 5 U.S.C. § 7117.
• Outcome: Agency nonnegotiability allegation set aside.
• Key point: A grievance proposal need not list every legal exclusion; whether a particular probationary separation grievance is barred remains open.

Full text (FLRA public release)

[ v04 p156 ]

04:0156(26)NG

The decision of the Authority follows:

4 FLRA No. 26

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2442
Union

and

VETERANS ADMINISTRATION, REGIONAL
OFFICE, NEWARK, NEW JERSEY
Agency

Case No. O-NG-65

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

UNION PROPOSAL

ARTICLE 22, SECTION 2(D)

(D) EXCEPT THAT IT (SCOPE) SHALL NOT INCLUDE A GRIEVANCE CONCERNING--

(1) ANY CLAIMED VIOLATION RELATING TO PROHIBITED POLITICAL
ACTIVITIES; OR

(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE; OR

(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF TITLE 5 USC
7121(C)(3); OR

(4) ANY EXAMINATION, CERTIFICATION OR APPOINTMENT RELATING TO INITIAL
EMPLOYMENT; OR

(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR

PAY OF AN EMPLOYEE.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER, AS ALLEGED BY THE AGENCY, THE UNION'S
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN UNDER SECTION 7121 OF THE
STATUTE BECAUSE IT FAILS TO EXPRESSLY EXCLUDE FROM COVERAGE OF THE
GRIEVANCE PROCEDURE THE SEPARATION OF EMPLOYEES DURING THEIR
PROBATIONARY PERIOD.

OPINION

CONCLUSION: THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER SECTION
7121 OF THE STATUTE. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
AUTHORITY'S RULES AND REGULATIONS (5 C.F.R. 2424.10), THE AGENCY'S
ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
IS SET ASIDE. /1/

REASONS: DURING NEGOTIATIONS BETWEEN THE PARTIES ON A GRIEVANCE
PROCEDURE AS REQUIRED BY SECTION 7121(A) OF THE STATUTE, THE UNION
PROPOSED THE LANGUAGE HERE IN DISPUTE, WHICH CONTAINS CERTAIN EXCLUSIONS
TO THE NEGOTIATED GRIEVANCE PROCEDURE THAT ARE, ESSENTIALLY, A DIRECT
EXCERPT FROM SECTION 7121(C) OF THE STATUTE. SECTION 7121 OF THE
STATUTE PROVIDES, IN PERTINENT PART, AS FOLLOWS:

SEC. 7121. GRIEVANCE PROCEDURES

(A)(1) EXCEPT AS PROVIDED IN PARAGRAPH (2) OF THIS SUBSECTION, ANY
COLLECTIVE BARGAINING

AGREEMENT SHALL PROVIDE PROCEDURES FOR THE SETTLEMENT OF GRIEVANCES,
INCLUDING QUESTIONS OF

ARBITRABILITY. EXCEPT AS PROVIDED IN SUBSECTIONS (D) AND (E) OF THIS
SECTION, THE PROCEDURES

SHALL BE THE EXCLUSIVE PROCEDURES FOR RESOLVING GRIEVANCES WHICH FALL
WITHIN ITS COVERAGE.

(2) ANY COLLECTIVE BARGAINING AGREEMENT MAY EXCLUDE ANY MATTER FROM
THE APPLICATION OF THE

GRIEVANCE PROCEDURES WHICH ARE PROVIDED FOR IN THE AGREEMENT.

(C) THE PRECEDING SUBSECTIONS OF THIS SECTION SHALL NOT APPLY WITH
RESPECT TO ANY GRIEVANCE

CONCERNING--

(1) ANY CLAIMED VIOLATION OF SUBCHAPTER III OF CHAPTER 73 OF THIS
TITLE (RELATING TO

PROHIBITED POLITICAL ACTIVITIES);

(2) RETIREMENT, LIFE INSURANCE, OR HEALTH INSURANCE;

(3) A SUSPENSION OR REMOVAL UNDER SECTION 7532 OF THIS TITLE;

(4) ANY EXAMINATION, CERTIFICATION, OR APPOINTMENT; OR

(5) THE CLASSIFICATION OF ANY POSITION WHICH DOES NOT RESULT IN THE
REDUCTION IN GRADE OR

PAY OF AN EMPLOYEE(.)

THE AGENCY CLAIMS IN SUBSTANCE THAT AN ADDITIONAL EXCLUSION, THE
SEPARATION OF EMPLOYEES DURING THEIR PROBATIONARY PERIOD, MUST BE
EXCLUDED FROM NEGOTIATED GRIEVANCE PROCEDURES "AS A MATTER OF LAW." THAT
IS, THE AGENCY MAINTAINS THAT UNLESS THE SEPARATION OF EMPLOYEES DURING
THEIR PROBATIONARY PERIOD IS SPECIFICALLY EXCLUDED FROM THE SCOPE OF THE
NEGOTIATED GRIEVANCE PROCEDURE, SUCH PROCEDURE, AS HERE, WOULD NOT
CONFORM TO SECTION 7121 OF THE STATUTE. MOREOVER, IN THE AGENCY'S VIEW,
DIFFERENCES OVER THE SCOPE OF THE NEGOTIATED GRIEVANCE PROCEDURE MUST BE
RESOLVED BY NEGOTIATING A LIST OF EXCLUSIONS TO SUCH PROCEDURE. FOR THE
REASONS STATED BELOW, THE AGENCY'S CONTENTION THAT THE UNION'S PROPOSAL
IS NOT WITHIN THE DUTY TO BARGAIN CANNOT BE SUSTAINED.

IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 3669
AND VETERANS ADMINISTRATION MEDICAL CENTER, MINNEAPOLIS, MINNESOTA, 3
FLRA NO. 48(1980), THE AUTHORITY REJECTED AN AGENCY CONTENTION THAT A
PROPOSED GRIEVANCE PROCEDURE WAS NOT WITHIN THE DUTY TO BARGAIN BECAUSE
IT DID NOT EXPRESSLY EXCLUDE CERTAIN MATTERS WHICH WERE ALLEGED TO BE
OUTSIDE THE SCOPE AND COVERAGE OF THE PARTIES' NEGOTIATED AGREEMENT BY
OPERATION OF LAW AND REGULATIONS. IN SO CONCLUDING, THE AUTHORITY,
RELYING UPON THE DEFINITION OF "GRIEVANCE" IN SECTION 7103(A)(9) OF THE
STATUTE, /2/ AS WELL AS THE LANGUAGE AND LEGISLATIVE HISTORY OF SECTION
7121(A) IN ITS ENTIRETY, STATED AS FOLLOWS:

IN SUM, CONGRESS CLEARLY INTENDED THAT THE SCOPE AND COVERAGE OF A
NEGOTIATED GRIEVANCE

PROCEDURE SHALL EXTEND TO ALL MATTERS WHICH "UNDER THE PROVISIONS OF
LAW" COULD BE COVERED

UNLESS THE PARTIES AGREED THROUGH THE COLLECTIVE BARGAINING PROCESS
TO A A PROCEDURE HAVING A

NARROWER COVERAGE. CONGRESS CLEARLY DID NOT, HOWEVER, MANDATE THAT,
TO FALL WITHIN THE DUTY

TO BARGAIN, EACH PROPOSED GRIEVANCE PROCEDURE MUST ENUMERATE ALL OR
SOME OF THE MATTERS WHICH

"UNDER THE PROVISIONS OF LAW" COULD NOT BE SO COVERED. SUCH A
REQUIREMENT WOULD BE REDUNDANT

AND WITHOUT LEGAL SIGNIFICANCE SINCE, AS INDICATED, SECTION 7121, AS
EXPLAINED BY THE

COMMITTEE ON CONFERENCE, ALREADY PROVIDES THAT NEGOTIATED GRIEVANCE
PROCEDURES COVER, AT A

MAXIMUM, MATTERS WHICH UNDER THE PROVISIONS OF LAW COULD BE SUBMITTED
TO THE PROCEDURES.

THE AUTHORITY FURTHER INDICATED THAT:

IF THE AGENCY BELIEVES THAT, AS A MATTER OF LAW, CERTAIN MATTERS ARE
NONGRIEVABLE AND

NONARBITRABLE, GRIEVANCES WHICH MIGHT BE FILED WITH RESPECT TO THEM
MAY BE CHALLENGED BY THE

AGENCY AS NONGRIEVABLE OR NONARBITRABLE IN THE CONTEXT OF SPECIFIC
FACTUAL CIRCUMSTANCES. IN

THIS REGARD, SECTION 7121(A) OF THE STATUTE REQUIRES THE PARTIES TO
"PROVIDE PROCEDURES FOR

THE SETTLEMENT OF GRIEVANCES, INCLUDING QUESTIONS OF ARBITRABILITY .
. . " FURTHERMORE, IF AN

ARBITRATOR WERE TO RENDER AN AWARD INVOLVING THE MATTERS WHICH "UNDER
THE PROVISIONS OF

LAW" MAY NOT BE COVERED BY NEGOTIATED GRIEVANCE PROCEDURES, THE
AGENCY WOULD HAVE AN

OPPORTUNITY TO CHALLENGE THE AWARD BY FILING EXCEPTIONS THERETO WITH
THE AUTHORITY PURSUANT TO

SECTION 7122 OF THE STATUTE (92 STAT. 1212) ON THE BASIS THAT THE
AWARD IS "CONTRARY TO ANY

LAW, RULE OR REGULATION."

THE ISSUES RAISED IN THE INSTANT APPEAL ARE IDENTICAL TO THE ISSUES
THAT WERE RAISED AND DISCUSSED IN THE VETERANS ADMINISTRATION MEDICAL
CENTER, MINNEAPOLIS, MINNESOTA CASE. THEREFORE, FOR THE REASONS FULLY
SET FORTH IN THAT DECISION, THE PROPOSAL IN THE INSTANT CASE IS WITHIN
THE DUTY TO BARGAIN.

ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

CERTIFICATE OF SERVICE

COPIES OF THE DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS
AUTHORITY IN THE SUBJECT PROCEEDING HAVE THIS DAY BEEN MAILED TO THE
PARTIES LISTED:

MR. RONALD D. KING, DIRECTOR

CONTRACT AND APPEALS DIVISION

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO

1325 MASSACHUSETTS AVENUE, N.W.

WASHINGTON, D.C. 20005

MR. GUY H. MCMICHAEL III

GENERAL COUNSEL

VETERANS ADMINISTRATION

810 VERMONT AVENUE, N.W.

WASHINGTON, D.C. 20420

--------------- FOOTNOTES$ ---------------

/1/ IN SO DECIDING THAT THE DISPUTED PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.

/2/ SECTION 7103(A)(9) OF THE STATUTE PROVIDES:

SEC. 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

(9) 'GRIEVANCE' MEANS ANY COMPLAINT--

(A) BY ANY EMPLOYEE CONCERNING ANY MATTER RELATING TO THE EMPLOYMENT
OF THE EMPLOYEE;

(B) BY ANY LABOR ORGANIZATION CONCERNING ANY MATTER RELATING TO THE
EMPLOYMENT OF ANY

EMPLOYEE; OR

(C) BY ANY EMPLOYEE, LABOR ORGANIZATION, OR AGENCY CONCERNING--

(I) THE EFFECT OR INTERPRETATION, OR A CLAIM OF BREACH, OF A
COLLECTIVE BARGAINING

AGREEMENT; OR

(II) ANY CLAIMED VIOLATION, MISINTERPRETATION, OR MISAPPLICATION OF
ANY LAW, RULE, OR

REGULATION AFFECTING CONDITIONS OF EMPLOYMENT(.)